A California Court Upholds Neighborhood-Based School Integration: A Possible Alternative If, As Many Expect, the Supreme Court Strikes Down More Conventional Race-Based Pupil Assignment

Supreme Court observers and school officials across the country are still awaiting the Court's decisions in two pending cases - one from Seattle and one from Louisville -- concerning the constitutionality of race-based student assignment in K-12 education. Meanwhile, they should pay close attention to another ruling last week - this one by a California state court - regarding pupil assignment.

The decision, American Civil Rights Foundation(ACLF) v. Berkeley Unified School District, upheld an innovative Berkeley public school voluntary integration program. If - as many (perhaps most) knowledgeable analysts expect-- the Supreme Court strikes down the Seattle and/or Louisville plans, the Berkeley-style program may become the wave of the future.

How the Berkeley Plan is Different From Those Before the Supreme Court

The Seattle and Louisville cases each involves a student assignment system in which the school district considers the race of individual students in determining which school each student attends. Although the Seattle and Louisville plans are not identical, both take into account a student's race as one of the "tie-breakers" to be used when more students than can be accommodated seek to attend a given school.

Both districts employ race-based assignments in order that the racial composition of each school in the district bears some resemblance to the racial composition of the entire district. Keeping schools in some kind of racial balance, they argue, enhances the diversity, and thus the quality, of the education offered at each school.

As I have noted in discussing these cases in a previous column, one important question is how applicable and relevant the Supreme Court's ruling in the University of Michigan Law School affirmative action case, Grutter v. Bollinger - where the Court, in 2003, allowed Michigan to consider the race of law school applicants - will be in this K-12 setting. The challengers, who claim that the districts' consideration of the race of individual applicants violates the Fourteenth Amendment's Equal Protection Clause, argue that Grutter simply doesn't permit the plans at issue.

The Berkeley plan that was upheld by a state court judge last week also seeks to integrate schools so that each one looks, racially speaking, somewhat like the district as a whole. And again, the stated justification is that students at all schools should benefit from the diversity found within the district as a whole.

But Berkeley officials had one problem that Seattle and Louisville school administrators did not: In California, a state constitutional amendment adopted by the voters in 1996 (Proposition 209) forbids, among other things, all "discriminat[ion] against, or preferential treatment to, any individual on the basis of race. . . in the operation of public education."

Seemingly because of this state constitutional provision, Berkeley officials devised a plan that looks, when school assignments are made, not to the race of each individual student, but instead to the racial makeup of the neighborhood from which that student comes. Under the plan, the City is broken up into 445 separate "planning areas," each one between 4 and 8 city blocks in size. Every planning area is assigned, based in part on the percentage of students of color who live there, a "diversity" score of 1 to 3. The diversity score of a student's neighborhood, among other things, is then used to decide where that student should be sent to school.

What the State Court Said in Upholding Berkeley's Plan

The Berkeley plan was challenged under Proposition 209. But the California trial judge ruled that the state law ban on racial discrimination or preferential treatment to "any individual on the basis of race" was not implicated. The judge reasoned that Proposition 209 did not apply because the Berkeley "Plan does not make any distinction in treatment, or give priority or advantage, based upon an individual student's race. Race is [simply] part of the assignment equation based only upon the community-wide racial makeup of [all] students [who live] in a planning area." (Emphasis added.)

In summarizing her rationale, the Judge observed: "[R]ace of an individual [student] is not determinative, and is factored in [only] indirectly."

In other words, because Berkeley looks at the race of each small neighborhood, rather than the race of each small child, there is no Proposition 209 problem.

Is Consideration of the Racial Composition of a Schoolchild's Neighborhood Constitutional?

Putting aside the peculiarities of Proposition 209, should the Berkeley plan pass muster under the federal Equal Protection Clause? That is, suppose the Court invalidates the Seattle and Louisville programs as Equal Protection violations. Can those cities then come back with a Berkeley-style plan and prevail?

There are certainly plausible arguments that when government considers the racial identity not of just an individual, but also of a group of individuals, the equal protection norm should still be implicated. For example, what if Berkeley, instead of focusing on the racial makeup of each small neighborhood, had focused instead on the racial makeup of each family or "household"? Of course, a child can be part of a family or household of color and still be white (if, say, he were adopted or were a distant relative) or vice-versa. But the correlation between a child's race and that of his household would seem so close that a focus on the household, rather than the child himself, would seem gimmicky.

In the present case, Berkeley chose to focus on small groupings of households (4 to 8 blocks large). Does that broadening of the admissions criteria from one house to, say, 30 or 40, make the program less race-based? Is that less gimmicky?

As a more general matter, should we ever differentiate between government consideration of a person's race, on the one hand, and government selection of (ostensibly race-neutral) criteria, like neighborhood, on the other hand, when the criteria are themselves selected because of their racial characteristics?

Imagine, for example, that Berkeley used the "diversity score" of each student applicant's neighborhood in order not to integrate, but to segregate: to keep students who live in predominantly white neighborhoods from attending schools with children who live in neighborhoods of color. Would we say that, because the race of no individual child is being considered, the equal protection presumption against the use of race is not implicated? Surely not. Indeed, wouldn't such a plan be just as problematic as thelegally-mandated segregation programs that existed before Brown v. Board of Education that looked at the race of each individual child?

The reader may object that this comparison is unfair -- for there is a difference between racial integration and racial segregation. I agree. But if that is the case - and if that is why the Berkeley plan actually adopted should pass federal muster -- then shouldn't we simply say that, rather than claim that the Berkeley plan doesn't really make use of race?

To give but one other example of the analytic danger of differentiating between consideration of the race of individuals and the consideration of the racial implications of using certain admissions criteria, suppose the University of California chose to emphasize the verbal component of the SAT score more than the math component, in its admissions process, in order to decrease the number of Asian-American students (on the theory that Asian-Americans fare relatively worse on the verbal component of the SAT than do whites). Would anyone argue that such a plan was not "racial discrimination" on the ground that no individual student's race was being considered?

The Support for the California Judge

Against all this analysis, however, are statements by, of all people, the conservative Justices who touted the virtues of a "color-blind" Constitution in the University of Michigan affirmative action cases.

In those cases, Justices Thomas and Scalia argued that the University of Michigan Law School (and undergraduate departments) should not have been constitutionally permitted to consider the race of individual applicants in order to increase racial diversity in the university. They included in their argument the suggestion that Michigan had other - presumably constitutional unobjectionable -- "race-neutral" options available to promote racial diversity, such as simply changing the criteria of admissions so that whatever criteria are used will yield a more racially balanced class: "With the adoption of different admissions methods. . . the [University] could achieve its vision of the racially aesthetic student body without the use of racial discrimination."

The implication of this passage is clear: Choosing admissions criteria with an overt eye towards yielding a racially diverse class does not constitute "racial discrimination." (This could be done in myriad ways: deemphasizing the LSAT, picking students randomly from a lottery - as Justice Scalia suggested at oral argument in the Michigan cases -- or selecting students from particular neighborhoods or particular feeder schools). Thus, in these Justices' eyes, racial discrimination lies only in the overt use of race itself as a criterion that is taken into account with respect to each applicant at the moment of application.

In the Michigan cases, Justice Ginsburg had a hard time seeing how such "facially" neutral plans adopted purposefully to promote racial diversity could be touted as truly race-neutral. (Such plans include the so-called "percentage plans" - which I discussed in an earlier column - pursuant to which state colleges pick the students with the highest class rank from each high school in the state, regardless of SAT/ACT scores, so as to promote geographic and racial diversity). These plans, Justice Ginsburg suggested, are hardly race-neutral since they "unquestionably were adopted with the specific purpose of increasing representation of African-Americans and Hispanics."

I have previously written about how Justice Ginsburg (who sees no absolute bar on race-consciousness, so long as it is inclusionary rather than exclusionary) seems right here, and how covert race consciousness may actually be less preferable than a more open consideration of the race of each student applicant. But if the Berkeley model begins to be emulated, we will see whether Justices Thomas and Scalia truly meant what they wrote in the Michigan cases, or whether their statements were just convenient ways to attack what Michigan had done there - statements from which these Justices will have to distance themselves in future cases.

Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.